TD Bank, N.A. v Seaman

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TD Bank, N.A. v Seaman 2013 NY Slip Op 31005(U) April 26, 2013 Supreme Court, Suffolk County Docket Number: 26123/11 Judge: Joseph C. Pastoressa Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] S H O R I FORFkl ORDER INDEX NO.: 26123111 SUPREME COURT - STATE OF NEW YORK IAS PART 34 - SUFFOLK COUNTY PRESENT: Hon. JOSEPH C. PASTORESSA Justice of the Supreme Court Mot. Seq. #001 MG #002 XMD TD BANK, N.A. SUCCESSOR BY MERGER TO COMMERCE BANK N.A. Plaintiff, -againstTHERESA SEAMAN, FRANK O BRIEN, COMMERCE BANK, N.A., CLERK OF THE SUFFOLIK COUNTY DISTRICT COURT, and JOHN DOE #1 through JOHN DOE #lo , the last 10 names being fictitious and unknown to the Plaintiff, the persons o r parties in tended being the persons or parties, if any, having o r claiming an interest in o r lien upon the mortgaged premises described in the verified complaint, COHN & ROTH Attorneys for Plaintiff 100 E. Old Country Road Mineola, N. Y. 11501 NIERODA & NIERODA, PC Attorney for Defendants Courthouse Corporate Center 320 Carleton Avenue Suite 6400 Central Islip, N. Y. 11722 Defendants. Upon the following papers numbered 1 to 23 read on this motion for summaw iudpment and order of reference; Notice of Motion/ Order to Show Cause and supporting papers 1 - 16 ; Notice of Cross Motion and supporting papers - 7 1 3; Affirmation in Opposition and supporting papers 21 - 23 ; f r s 3 it is, ) 3 1 UPON DlJE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is ORDERED that this motion (001) by plaintiff TD Bank, N.A. Successor by Merger to Bank), for an order pursuant to CPLR 3212 for summary judgment on its complainl, to strike the combined answer of defendants Theresa Seaman (Seaman) and Frank O Brien (O Brien). awarding plaintiff a default judgment against defendants Commerce Bank N.A. and the Clerk of the Suffolk County District Court, for an order of reference appointing a referee to computc: pursuant to Real Property Actions and Proceedings Law 5 1321, is granted; and it is further Commerce Bank N.A. (TD ORDERED that plaintiff s application for leave to amend the caption of this action pursuant to [* 2] TI) Bank v Seaman Index No.: 11-26123 Page No. 2 CPLR 3025 (b), is granted; and it is further ORDERED that the caption is hereby amended by substituting the name Keith Seaman for John Doe #1 and by striking the names of defendants John Doe #2 through John Doe #lo ; and it is further ORDERED that the caption of this action hereinafter appear as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK TD BANK, N.A. SUCCESSOR BY MERGER TO COMMERCE BANK N.A. Plaintiff, -against- THERESA SEAMAN, FRANK O BRIEN, COMMERCE BANK, N.A., CLERK OF THE SUFFOLK COUNTY DISTRICT COURT, KEITH SEAMAN Defendants. ORDERED that this cross motion (002) by defendants Seaman and O Brien seeking, inter alia, to restore the instant matter to the court s Residential Mortgage Foreclosure Settlement Conference Calendar is denied. The plaintiff commenced this action to foreclose a mortgage on August 18, 20 1 1 in connection with the premises known as 79 Hammond Road, Centereach, New York. On March 8, 2005, defendant Seaman executed a note in favor of Commerce Bank, N.A. (Commerce Bank), agreeing to pay the sum of $249,000.00 at the rate of 5.990 percent. On March 8,2005, defendants Seaman and O Brien executed a first mortgage in the principal sum of $249,000.00 on the subject property. The mortgage was recorded on May 9, 2005 in the Suffolk County Clerk s Office. Plaintiff TD Bank, successor by merger to Commerce Bank, sent a notice of default dated January 1 1 , 2 0 1 1 to defendants Seaman and O Brien stating that they had defaulted on their mortgage loan and that the amount past due was $3,663.79. Thereafter, on or about March 1, 201 1, plaintiff sent defendants Seaman and O Brien a 90 day notice pursuant to RPAPL 5 1304. As a result of the defendants continuing default, plaintiff commenced this foreclosure action on August 18, 201 1. In its complaint, plaintiff alleges in pertinent part that defendants breached their obligations under the terms [* 3] TD Bank v Seaman Index No.: 11-26123 Page No. 3 and conditions of the note and mortgage by failing to make their monthly payment payable on November 12,2010 and subsequent payments due thereafter. The Court s computerized records indicate that a foreclosure settlement conference was held on June 28, 2012 at which time this matter was referred as an IAS case since a resolution or settlement had not been achieved. Thus, there has been compliance with CPLR 3408 and no further settlement conference is required. Defendants interposed a combined answer consisting of a denial and six affirmative defenses. Plaintiff now moves for summary judgment on its complaint contending that defendants Seaman and O Brien failed to comply with the terms of their loan agreement and mortgage, that notice of default was mailed to the defendants, that the defendants failed to timely cure the default, and that the answer and defenses of the defendants fail to establish the existence of a triable issue of a fact. In support of its motion, plaintiff submits among other things: the sworn affidavit of Tonya Daigneault, assistant vice president and collection supervisor I1 for plaintiff; the affirmations of Michael C. Nayar, Esq. in support of the instant motion; the affirmation of Michael H. Cohn, Esq. pursuant to the Administrative Order of the Chief Administrative Judge of the Courts (AO/43 1111); the summons and complaint; the note and mortgage; a notice of default; notices pursuant to RPAPL $6 1320, 1304 and 1303; affidavits of service for the summons and complaint and instant motion; a memorandum of law; and, a proposed order appointing a referee to compute. Defendants Seaman and O Brien by notice of cross motion, oppose the summary judgment motion, seek to restore the instant matter to the court s residential mortgage foreclosure settlement conference calendar and request an order pursuant to CPLR 3 126 (2), (3) for plaintiffs failure to answer defendants discovery demands. No affidavit by the defendant or anyone else with personal knowledge of the circumstances of this case was offered to refute the facts established by plaintiff in the underlying motion. Plaintiffs reply affirmation asserts that defendants failed to state any facts that would establish a triable issue with regard to a bona.fide defense. Plaintiff avers that defendants were given several opportunities to subinit a complete and full loan modification to plaintiff yet, defendants habitually failed to abide by the Court s directives to submit same. On April 17,20 12, it was finally determined that defendants did not qualify for a loan modification based upon their high debt to income ratio. [Iln an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see Republic Not/, Bank of N. Y. v O Kane, 308 AD2d 482, 482 [2d Dept 20031; Village Bank v Wild Oaks Holding, 196 AD2d 8 12 [2d 1)ept 19931; see also Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079 [2d Dept 201 01). Once a plaintiff has made this showing, the burden then shifts to defendant to produce evidentiary proof in admissible form sufficient to require a trial of their defenses (see Aavrzes Funding Corp. v Houston, 44 AD3d 692 [2d Dept 20071; Household Fin. Realty Corp. of New York v Winn, 19 AD3d 545 [2d Dept 20051; see also Washington Mut. Bank v Valencia, 92 AD3d 774 [2d Dept 20 121). [* 4] TD Bank v Seaman Index No.: 11-26123 Page No. 4 Here, plaintiff produced the note executed by defendant Seaman and mortgage executed by defendants Seaman and O Brien, as well as evidence of defendants nonpayment, thereby establishing a prima facie case as a matter of law (see Wells Fargo Bank Minnesota, Natl. Assn. v Mastropnolo, 42 AD3d 239 [2d Dept 20071). Tonya Daigneault, assistant vice president and collection supervisor I1 for plaintiff, avers that the defendants defaulted under the terms of the note and mortgage by failing to tender payment for the monthly installment due for November 12,20 10 and subsequent payments thereafter. Defendants were mailed a notice of default dated January 11, 201 1 which was not cured. Thereafter, notice required by RPAPL 1304 (the 90 day notice) was mailed to defendants on or about March 1, 20 1 1. As a result of the continuing default, plaintiff elected to accelerate the mortgage debt and declared all sums secured thereby due and payable on the mortgage. Plaintiff maintains that they are in physical possession of the original note. Once plaintiff has made a prima facie showing, it is incumbent on defendant to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff (see Cochran Inv. Co., Inc. v Jackson, 38 AD3d 704,705 [2d Dept 20071 quoting Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467 [2d Dept 19971). Here, defendants have failed to demonstrate, through the production of competent and admissible evidence, a viable defense which could raise a triable issue of fact (see Deutsche Rank Natl. Trust Co. v Posner, 89 AD3d 674 [2d Dept 201 11). Motions for summary judgment may not be defeated merely by surmise, conjecture or suspicion (see Shaw v Time-Life Records, 38 NY2d 201 [ 19751). Here, the defendants papers are devoid of sufficient evidence to support their contentions. This court finds that the answer, affirmative defenses and averments contained in the affirmation in opposition to summary judgment submitted by defendants, which contain mere denials and unsupported declarations, to be insufficient so as to raise a triable issue of fact. The defendants have cross-moved seeking to restore the instant matter to the court s residential mortgage foreclosure settlement conference calendar. Defendants through their attorney. in pertinent part, contend that [pllaintiff, by this motion, attempts to negate all of the hard work and effort [dlefendant and his attorney have put into the loan modification process as a basis for this Court s denial of summary judgment and restoration of the matter to the conference calendar. In support of their application, defendants submit, among other things: a copy of defendants demand for discovery; a copy of a TD Bank financial analysis worksheet; bank statements; and various correspondence. While it appears that very limited efforts were made by the defendants to attempt to obtain a loan modification, same cannot be characterized as hard work or substantial efforts . Furthermore, the Court s computerized records indicate that foreclosure settlement conferences were held on October 18,201 1; January 3,2012; February 23,2012; April 17,2012 and June 28,2012 at which time the matter was finally marked not settled and referred to this part. Here, the evidence in support of the cross motion as offered by defendants is patently insufficient to uarrant this Court to grant the reliefrequested. As such, the court denies such application. [* 5] TD Bank v Seaman Index No.: 11-26 123 Page No. 5 Based upon the foregoing, the motion for summary judgment is granted, the combined answer and affirmative defenses of defendants Seaman and O Brien are stricken. The cross motion is denied. In addition, plaintiffs request for an order of reference appointing a referee to compute the amount due plaintiff under the note and mortgage is granted (see Vermont Fed. Bank v Clzase, 226 AD2d 1034 [3d Dept 19961; Bank ofEastAsia, Ltd. vSmith, 201 AD2d 522 [2d Dept 19941). The proposed order appointing a referee to compute pursuant to RPAPL § 132 1 is signed simultaneously herewith as modified by the court. Plaintiff is directed to serve a copy of this order amending the caption of this action upon the Calendar Clerk of this Court. n Dated: April 26, 20 13 H O N ~ O S E P H PASTORESSA, J.S.C. c. FINAL DISPOSITION X NON-FINAL DISPOSITION

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